The most consequential religious liberty case in a generation

One of the most important religious liberty cases in a generation will come before the Supreme Court on Tuesday. Hobby Lobby and Conestoga Wood Specialties will be making their final appeal for an exemption from Obamacare’s coercive “contraceptive” mandate. Obamacare requires employers to provide health coverage for all FDA-approved contraceptive devices. So what’s the problem?

Some of the devices—like IUD’s and morning-after pills—can cause abortions. The owners of Hobby Lobby and Conestoga are Christians and have said that they cannot in good conscience pay for coverage that can lead to killing an unborn human being. So these Christians have a choice. Either violate their conscience and provide coverage for abortion inducing drugs, or face crippling fines that will effectively put them out of business. And that is why they are at the Supreme Court—to ask for relief from government coercion to sin.

The contraceptive mandate is one of the most egregious violations of religious liberty that I have ever seen. The United States Government is forcing these Christian business owners to pay for abortion inducing drugs in their employees’ insurance plans. It doesn’t matter that the law violates their religious liberty to conduct business in a way that is consistent with their conscience. Obamacare mandates that these Christians comply or face fines that will put them out of business.

As we approach oral arguments on Tuesday, you will likely encounter a great deal of commentary on this case. You can be sure that much of the coverage that you will hear will be driven by leftist propaganda that distorts what is really at stake. On Saturday, for instance, the nation’s “paper of record” The New York Times published an editorial that was filled such distortions. So here’s a look at some of the most common canards that you will be hearing and how you ought to think about them.

“The owners of Hobby Lobby and Conestoga are denying their employees access to contraceptives.”

These Christian business owners are not trying to take away an employee’s right to purchase contraceptives. Nor are they trying to deny employees access to health coverage that provides contraceptives. Those who claim that they are are telling outright, demonstrable falsehoods. There’s nothing in Hobby Lobby’s suit that would deny any person the freedom to purchase contraceptives or insurance coverage for those devices.

This case is not about a woman’s “right” to purchase contraceptives and abortifacient drugs. This case is about who will be forced to pay for them. President Obama believes that the federal government has a right to force Christian employers to pay for contraceptives and abortifacient devices. Hobby Lobby and Conestoga are simply saying that they cannot in good conscience pay for those things.

“The owners of Hobby Lobby and Conestoga are trying to impose their religious beliefs on their employees.”

This claim is a fundamental misunderstanding of what’s going on in this case. No one is asking these employees to become Christians. No one is even asking them to submit to Christian scruples about contraceptives and abortion. Employees are still free in this country to buy contraceptives and abortifacient drugs. They are not free to expect Christians and other people of conscience to pay for them. Hobby Lobby’s desire not to pay for their employees’ contraceptives is hardly “forcing” their religion onto them. Anyone who thinks that it is is either severely confused or cynically dishonest.

“None of the FDA-approved contraceptive devices cause abortions.”

I have written about this claim extensively both on this blog and in my book. It is not true. The FDA’s own labels list an abortifacient mechanism of action for morning-after pills Ella and Plan B. It is not the primary mechanism of action, but it is one of them. Recent studies have called into question an abortifacient mechanism for Plan B. But no such studies exist for Ella. Nor do such studies exist for IUD’s. The potential abortifacient mechanism for these two is widely known, as the FDA labels indicate.

“Hobby Lobby has the option to stop offering health plans to employees that include coverage and to pay the tax.”

This option is not really an option. They would either have to drop their health plan altogether or pay a crippling punitive tax that would put them out of business. If Hobby Lobby fails to offer health insurance to their employees that includes coverage for abortion inducing drugs, then they become liable to the “Employer Shared Responsibility Payment” under Obamacare. That tax for not offering coverage is $2,000 per month per employee. Hobby Lobby has 21,000 employees, 13,000 of whom are covered on their insurance plans. As Emma Green reports for The Atlantic:

If they were to lose in court, this stance would almost certainly be a financial catastrophe for Hobby Lobby: They would be forced to drop their insurance plan and pay the $26 million penalty, or else provide insurance without birth control and pay up to $100 per day per employee for not complying with the health care law. With 13,000 employees currently covered by Hobby Lobby’s plan, their legal team estimates that this could mean up to $1.3 million in fines every day, or $475 million each year.

The latter scenario is a punitive tax designed to put them out of business if they do not comply. It’s precisely why they are suing. It’s not reasonable to expect them to pay this. If they did, they would be submitting to a punishment imposed on them because of their religious convictions.

“Christian business owners are crying wolf about religious liberty. They still have freedom to worship.”

The editors of the New York Times make this argument saying that Hobby Lobby and Conestoga are “crying wolf” about religious liberty. After all, the editors argue, they still have freedom of worship. But the first amendment to the constitution guarantees more than freedom of worship. Religious liberty is not merely about what takes place behind the doors of your church on Sundays. The first amendment guarantees freedom of religion—meaning that it is a fundamental human right to practice our religion in every facet of our lives, including our professional lives. If the Supreme Court ever proscribes the first amendment to mean only freedom of worship and not freedom of religion, it will be comprise the most aggressive assault on religious liberty in this nation’s history. But I don’t think that the Supreme Court is going to go there, even though the leftist mavens of the New York Times would like them to.

“Corporations like Hobby Lobby are not persons and have no claim on religious liberty. Nor does the ‘Religious Freedom Restoration Act’ apply in this case.”

Ramesh Ponuru has written compellingly on these legal points and shows that neither of these claims is correct. He concludes, “So long as the principle behind the lawsuits is defined precisely, the arguments against it and them are very weak.” I leave you to read the rest of his article here. For more on the legal issues involved, I would also commend to you Robbie George’s analysis in today’s Wall Street Journal.

Oral arguments will be heard on Tuesday. The justices will render a decision in June. No doubt, we will have much more to say about this case moving forward. For now, it would be a good time for Christians to pray for a favorable outcome in this case. If you don’t care very much about this issue now, it won’t be long before you will be made to care. The justices’ decision will affect all of us.

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The Heritage Foundation produced the following video summarizing what’s at stake in this case for religious liberty and why it matters for all Americans.

96 Responses to The most consequential religious liberty case in a generation

“President Obama believes that the federal government has a right to force Christian employers to pay for contraceptives and abortifacient devices.”

“Obamacare mandates that these Christians comply or face fines that will put them out of business.”

These statements are all incorrect. Hobby Lobby is free to choose not to provide health insurance to its employees. *If* it decides to provide health insurance – and avail itself of the corresponding tax benefits – it is required to provide a plan that complies with Obamacare. The law doesn’t force Hobby Lobby to choose between abortifacients and oblivion, so there’s no religious liberty issue here.

The part that your missing, Bill, is that hobby lobby already provides insurance coverage. Obamacare is forcing them to change it in a way that violates their conscience. If they choose not to offer coverage, they have to pay a tax in its place.

So not only that, but if the mandate is forcing Hobby Lobby to change their insurance policies for their employees, then the employees who “like” their coverage won’t exactly get to keep it the way it is then huh?

Denny’s right Bill. This is a case of do what we say, even if it goes against your belief system, or we’ll bring punitive damages against you.

The First Amendment is a shield, not a sword. You can use it to protect yourself when you are genuinely being *forced* by the state to violate your own conscience, but you can’t use it to go around exempting yourself from generally applicable provisions of law, which is what Hobby Lobby is doing here. The HHS rule does not force Hobby Lobby to violate the Greens’ religious beliefs.

Bill, they are being forced by the state-
The ObamaCare employer mandate / employer penalty, originally set to begin in 2014, will be delayed until 2015 / 2016. The ObamaCare “employer mandate” is a requirement that all businesses with over 50 full-time equivalent (FTE) employees provide health insurance for their full-time employees, or pay a per month “Employer Shared Responsibility Payment” on their federal tax return.

So if they drop the coverage completely for their workers, they’ll be hit with fines. It’s a lose/lose situation with a violation of the faith/principles that they run the company with. What if they are compelled by their faith to offer the health insurance they currently do? So they’d be violating their faith if they keep it and comly with the ACA mandate for birth control, or violate their faith if they dumped the coverage for employees altogether.

“So if they drop the coverage completely for their workers, they’ll be hit with fines.”

For clarity’s sake – If a large employer does not provide insurance to its employees, it has to pay a tax. The tax would likely cost less than the insurance does. But if it does provide insurance, the insurance has to comply with federal law. Providing non-compliant insurance will subject the company to huge fines.

Are you arguing that the Greens’ religious beliefs also require them to offer health insurance to their employees? Tell me more. Even so, couldn’t they fulfill this obligation and avoid buying health insurance by simply raising their employees’ wages as a kind of health insurance subsidy?

Federal law gives the Greens an out that, for some reason, they refuse to take. There are a few different ways they could both comply with federal law and protect their religious conscience.

You can call it whatever floats your boat, or whatever Justice Roberts deemed it to be. But if you are forced to pay a monetary sum for doing something or not doing something, it’s a fine (in action and in deed)

No, as Denny states and the public information is out there, the cost to pay the “fines” would bankrupt the company.

Okay, Bill. I updated the post to reflect the scenario of them not offering any healthplan at all. That would still cost them about $26 million per year. They would be paying that amount, but their employees still wouldn’t be getting health coverage. Which means they would either have to raise wages or suffer the consequences of being less competitive as an employer in the free market. If they raise wages, the net effect would probably cost them something in the $50-$70 million dollar range. Even though the cost is less, that is still an punitive fine imposed on them because of their religious convictions. And that is precisely what the first amendment protects them from.

See the Fourth Circuit’s opinion in the Liberty University case – the court said the Shared Responsibility tax was “proportionate” not “punitive”. If Hobby Lobby doesn’t want to provide insurance to employees, it simply has to pitch in to help the government provide insurance.

They don’t want to pay the tax because it will put them out of business. The tax for not offering coverage is $2,000 per month per employee (read about it here). They have 21,000 employees. That means they would have to pay a $42 million dollar tax every month! That comes out to $1.4 million dollars per day or $504 million dollars per year.

That is a punitive tax designed to put them out of business if they do not comply. It’s precisely why they are suing. It’s not reasonable to expect them to pay this. They would be punished by the government because of their religious convictions.

I think your math is off. If HL declines to provide insurance, it would have to pay “the product of the applicable payment amount and the number of individuals employed by the employer as full-time employees during such month.” That’s about $167 bucks per month per full-time employee, which is probably about the same as the cost of paying for insurance! See 26 USC 4980H.

The huge fines come in if HL insists on providing a *non-compliant* insurance plan. They’re governed by a completely different provision of the act. See 26 USC 4980D. These are the fines that might put HL out of business. But HL could avoid these fines entirely – and protect its conscience – if it would just pay the tax in 4980H and get on with it.

(if they cut coverage)
Does HL provide coverage? No
Did at least 1 employee receive a premium tax credit or cost sharing subsidy in an exchange? Probably at least 1.
Then, the employer must pay a penalty for not offering coverage (The penalty or tax is $2,000 annually time the number of full-time employees minus 30. The penalty is increased each year by the growth in insurance premiums)

This looks correct. That comes out to a tax of about 13,000 employees x $ 2,000 = $ 26 million in the first year of the employer mandate. That’s different from the huge fines. Will $26 million put HL out of business? By my math, that’s about 1.1% of its 2011 revenue, much of which it was already spending on insurance.

Okay, Bill. I updated the post to reflect the scenario of them not offering any healthplan at all. That would still cost them about $26 million per year. They would be paying that amount, but their employees still wouldn’t be getting health coverage. Which means they would either have to raise wages or suffer the consequences of being less competitive as an employer in the free market. If they raise wages, the net effect would probably cost them something in the $50-$70 million dollar range. Even though the cost is less than actually purchasing coverage, that is still an punitive fine imposed on them because of their religious convictions. And that is precisely what the first amendment protects them from.

Bill: You’re right that Hobby Lobby doesn’t have to provide health insurance to its employees at all. So, doesn’t its willingness to spend thousands and thousands of dollars fighting this tell you something? Hobby Lobby WANTS to keep providing health insurance to its employees but without having to provide particular items which violate the religious beliefs of its owners. So you are right, in a sense, but, de facto, the law does force Hobby Lobby to choose between abortifacients and providing coverage. It is asking not to be forced to do so because it violates its First Amendment rights.

“This is a case of do what we say, even if it goes against your belief system, or we’ll bring punitive damages against you.”

No, you’re characterizing it as if Hobby Lobby has only two choices – abortifacients or fines. But they are free avoid the religious liberty conflict by not offering insurance as compensation to their employees.

What seems to be one of the problems here is that the law is too broad and fails to make distinctions. As a result, sample cases that have nothing to do with abortion will be used to argue for the application of the law that involves abortion. There are non-abortive uses of contraceptives that might also cause abortions. These uses are medical in nature. And perhaps that needs to be distinguished.

So if they have to wait to make a ruling based on getting a plethora of additional medical information on what “could” or “might” be an abortifacient, looks like we might be waiting an awfully long time to get a decision then.

Grater issue becomies whether or not companies can have a “conscience”, but with what I’ve seen lately, it sure seems liek they do and are able to exercise it to make their opinion known.

This is a landmark case for religious liberty: If Hobby Lobby wins, employees everywhere will LOSE their religious liberty. My benefits and my paycheck are mine to do with as I wish. If Hobby Lobby wins, a Christian Scientist can use the ruling and say that I’m no longer entitled to get blood transfusions via my insurance, same as Hobby Lobby can say that my wife is no longer entitled to use IUDs via my insurance. That is an obscene outcome.

Religious liberty does not equal unfettered freedom. Rastafarians don’t have a right to smoke pot just because their religion tells them its a sacrament. Companies don’t have a right to discriminate against women in hiring just because you believe that women shouldn’t have authority over a man. This is the logical outcome of granting companies religious rights. Granting religious liberty to for-profit-corporations would be a grossly unjust and seriously stupid thing to do.

Companies like Guinesss and others do in fact act with a conscience. Look at the recent St. Patrick’s day parade in Boston. Many corporate sponsors (Guiness was the large noteworthy one) pulled out of the even because the parade organizers would not allow a specific group to march that had an agenda.

Example, many people heard that the parade did not allow gay groups to march. That was not the case. They denied a gay group that wanted to march for “marraige equality”, not just be a group and be in the parade route. They weren’t denying gays the right to march in the parade, just a gay group that was marching for “marriage equality”

So clearly, these companies heard what was going on and then, because they “believe in equality” they pulled out of the parade as a sponsor. And I think the lone sponsor was Ford, but I’m sure they’ve already received backlash for not pulling out.They probably won’t be back next year.

So clearly, corporations can have beliefs and souls. Or at least they act like they do.

I’m not saying that companies can’t choose to employ a conscience, I’m saying they have no Constitutionally-given right to do so, just like Philip Morris’ 1stA rights don’t allow it to go around saying, “Cigarettes are good for you!” Unlike a person, corporations have no souls–and certainly most of them act soulless. Hence, the state can and must–as in the Philip Morris example above–regulate the 1st A rights of corporations. If you as a business owner want the lower tax rates and the lowered liability of a corporation, then you as a business owner must accept the concomitant regulation corporations receive. For additional rights they get additional responsibilities. If Hobby Lobby’s owners don’t feel like they can practice their conscience then they must sell their shares, just as Jesus told the rich man.

All corporations are private, its just a question as if they’re publicly traded or not. Being a privately corporation still avails you of the lower tax rates and lowered liability that all other corporations get. For the Greens to argue that this business represents their personal conscience they’d have to organize as a sole proprietorship–and accept the higher taxes and increased legal risks that entails.

Chris, this might be pedantic, but there are multiple meanings of the word “public” and “private”. In the world of equities, “private” means “not listed publicly on an exchange” and “public” means “listed on an exchange and an SEC registrant.” (And yes, there are companies that aren’t listed but still are SEC registrants, kind of a never-never land).

This is not the same as “public” meaning “government” vs. “private” meaning “non-government”. As long as we are talking legal ownership of a company, the equity meaning of “public” and “private” should be used.

The issue here isn’t whether companies can advocate for causes or express “conscience”. It’s whether they have a constitutional right to exempt themselves from federal law based on the conscience of their owners.

Bill,
I think the issue is whether someone can start a business and operate it according to the dictates of their conscience (as protected by the 1st Amendment). Or to put it another way, can the (current) Federal Govt exempt itself from the Bill of Rights? If the 1st Amendment doesn’t mean that individuals (as companies or otherwise) can conduct businesses according to their conscience it is practically meaningless.

There is no way you can read the above comments objectively and not think Bill Hickman is just a rotten human person. And that is just kind of the frank, sad state we are in as a country, because he’s not a small minority. How do we even have a conversation? How do we even talk?

I’m not trying just to be a punk, though I know I’m being unkind towards Bill. But when we’ve gotten to the point where half the country can disagree with what Denny has written here – it’s lost. Even if Hobby Lobby wins this one, that’s a battle in a lost war. America is done, our focus is going to have to start being on what is next and how to adjust.

I read Bill’s comments and thought he made some good points. That you think he’s a rotten person because he raises contrary questions or disagrees on substantive issues about process tells me more about you than it does Bill. You do not seem to want a conversation or even to talk if you are willing to characterize disagreement as evidence of rottenness.

A win by Hobby Lobby will set a terrible precedent. Every business would start claiming exemptions based on the business’ beliefs (since when are corporations people, oh right, I remember now, Citizens United settled that). Then businesses can (will!) claim all kinds exemptions, though claiming them does not mean they will prevail. But if Hobby Lobby wins, the precedent will be that businesses themselves (not just their owners) will have First Amendment rights, which will put the government in the business of mediating which exemptions businesses will be granted. Many of the groups which now are seeking the exemption were actually providing coverage for the services they now seek exemption from, because they see a change to make a political point, and save some money along the way.

Hobby Lobby is not a secular, publicly traded company. Rather, it is the personal, purpose-driven mission of one of the most devout families I’ve ever met. (Warren)

I appreciate that it is Hobby Lobby, not the entire business sector, that is before the high court this week. As a description of Hobby Lobby, these sentences are formally accurate. Still, they give aid and comfort to the myth of secular neutrality that is the deepest foundation of the assault on religious freedom. Specifically, they imply:
1.Publicly traded companies are “secular.”
2.Publicly traded companies are not “personal” to those who work in them.
3.Publicly traded companies are not “purpose-driven.”
4.Religious freedom rights are contingent on the level of personal devotion demonstrated by those claiming them.

In fact, all businesses without exception are moral, culture-making enterprises. Business is human action, and human action is always morally and culturally grounded—and formative.

The law should treat business as a moral activity. And so should churches! One of the long-term factors that has left our culture unable to understand the kind of claim being made by Hobby Lobby has been the failure of so many churches to teach that business is a vocation.

Denny – I understand that Hobby Lobby doesn’t want to cover drugs that are abortifacient, but have they not considered that by doing so they are also not providing coverage for those contraceptives that are not so clearly abortifacient, which will allow for more unwanted pregnancies that often end in abortion. Seems like their action to not pay for drugs that are abortifacient or not so clearly abortifacient could actually pave the way for more abortions.

Here’s a point that some will consider controversial, but I think well-meaning conservatives should consider it:

1) Hobby Lobby’s insurance plan actually *did cover* the abortifacients at the heart of this controversy until shortly before this litigation started.

2) Also, as I’ve tried to explain above, Hobby Lobby could have avoided the entire religious liberty controversy by declining to offer insurance to its employees, but for some reason it has not done so.

If you listen to conservatives, you’ll come away thinking poor, dear Hobby Lobby unwillingly got swept up in this litigation to protect itself from getting steamrolled by the federal government. But those two facts suggest something else – far from being on the defensive, It seems like Hobby Lobby actually *wanted* to be in this litigation and affirmatively made choices to place itself in the middle of the controversy.

I’m sure the Greens are sincere about their interests in the case, but I can’t help but think the case is also being used as 1) a way to drum up negative press about Obamacare during its first year and 2) a perfect way to test new legal theories in front the Court that would allow business to exempt itself from laws and regulations. Credulous religious conservatives should pause and consider whether this cause is also being used as a vehicle for corporate interests.

Here is a good article on the legal aspects of religious exemptions that is very objective and very informative. I urge all to read it to better understand the legal implications of this case and to better deal with many objections and questions that arise from the issue of religious exemptions. Point 6 is very relevant to the discussions on this thread and is a MUST read.

Here is a better idea, abolish all health insurance and let everyone work out a payment arrangement with their own physician. The moral decisions that need to be made would be at the individual level where they belong. Government should be responsible for infrastructure and the military and that is it.

What right does the government have to abolish health insurance? You are free to pay out of pocket for all medical procedures, are you not? What you are asking for is a change of mindset and your ideology is not consistent with your prescription for the problem.

It has the same right to *abolish* health insurance as it has to *establish* health insurance, one must concede. If you are even remotely familiar with ACA, then you know that people are no longer “free to pay out of pocket for all medical procedures.”

Because of the insurance/lawsuit culture around healthcare that we have here, you know good and well that no ordinary person can begin to pay $100,000+ for treatment when the big stuff (cancer, heart issues, etc.) hits. And you know good and well that when you receive a bill from a hospital, they charge exorbitant rates which insurance companies then review and bargain down to less exorbitant rates. Having to take on that role (which should not even have to exist if healthcare were reasonably priced) would become a massive burden to anyone who ever has to go to the doctor. All this to say, we have a very broken, messed up system. And ObamaCare makes it no better while costing the public $1,000,000,000,000+, raising rates across the board, and constricting religious liberty.

This is horrible reasoning on the part of those defending the health care law. Even if you say that they could just not provide health insurance to their employees, there is a major league problem right away, and that is that Christian companies, simply because of their Christian beliefs, would be unable to give health insurance without violating their convictions. Again, secularists, imagine if the tables were turned, and there was a health care law that forced businesses to pay for therapies to help homosexuals repent of their homosexuality, and also forced businesses to provide health care coverage, with a similar fine if they do not. The head of the corporation is a hard left liberal, and he believes that this therapy will cause emotional damage, and so he sues. His argument is that he is being forced to provide coverage for something that violates his personal beliefs. However, the court then tells him that he is not being forced to provide coverage, and that he can refuse coverage, and only pay a fine. And it is about as much as he is putting out in health care costs as it is, so it will not hurt him. The homosexual rights groups would be rioting in the streets over that one!

The point is, if they decide to decline to give health insurance based on their beliefs, then they are taxed for basically holding to their beliefs. More than that, it ignores the utter, complete, and total discrimination in forcing businesses built on Christian belief systems to abandon providing health care coverage to their employees or violate their conscience. Why is it that secularists who believes that abortion is a right get to provide health care coverage to their employees, but Christians who believe that it is wrong are forbidden from providing coverage to their employees without violating their conscience, and worse, are taxed simply for holding to these beliefs? Again, if this were a matter of providing therapy to homosexuals to help them change, the secularists would be all over it. I can only see the homosexual riots if a law came out forcing liberal business owners to either violate their beliefs on homosexuality, or no longer provide health care, and then, on top of that, get fined for so doing. Why force the Christians out of providing health care, and, on top of that, tax them for merely holding to the notion that abortion is wrong?

The answer, I think, is that this is where liberalism has to go. They have no basis for ethics, and so, as Francis Schaeffer said, they have to impose what a small number of people think is best for society at the given moment. It is “sociological arbitrary law,” as Schaeffer used to say. Because of the fact that the courts have been a part of making this sociological arbitrary law, I am not convinced that this will turn out well. If the courts believe that punishing Christian organizations for holding that killing children in the womb with drugs is wrong will be good for society, they will do it. Even though the tax would be directly related to their Christian beliefs, it would be declared “proportionate” and not “punitive.” Why? Because the secularists think that it will be best for the society at the given moment to redefine these terms. What a complete contrast to Paul Robert’s mural “Justice Lifts the Nations” in the Lausanne, Switzerland courthouse. In that painting, judges are pictured looking up to justice, who, in turn, is pictured with her sword pointing down to a book called “the word of God.” All of the judges of Switzerland had to pass by that mural when they went to try a case to remind them that what is sociological and arbitrary is not the standard of law. The the absolutes of law come from the word of God itself. We have come a long way from that view, and yes, Obamacare is simply the logical result of a shift from the word of God as providing a universal, non-arbitrary, and non-sociological base for law to sociological arbitrary law.

“Even if you say that they could just not provide health insurance to their employees, there is a major league problem right away, and that is that Christian companies, simply because of their Christian beliefs, would be unable to give health insurance without violating their convictions.”

This is not how the First Amendment works. The First Amendment stops government from coercing citizens to violate their own religious beliefs. It does not give citizens the *affirmative* right to overturn a law that doesn’t let them provide health insurance to their employees in precisely the way they want. Federal law already allows Hobby Lobby to escape the contraception requirement by simply paying the shared responsibility tax, so there’s basically no burden on its religious liberty here.

Bill, you bring up some good points, so please don’t think that I’m trying to be unnecessarily contentious.

My question is this: what if there was a law past that required owners of media to dedicate a certain portion of their content to “patriotic” stories–for example, if you were a newspaper, and you had to devote a page of stories that supported the current administrations policies as good and just. What if, in lieu of printing this page, you had to pay a “fee” to get out of posting these stories.

Would this not be a violation of the First Amendment rights of the owners of the Newspaper?

Or let’s say that the government says that you have to submit to periodic inspections of your house to insure you’re not doing something illegal–and ALL Americans have to submit, or pay a fee to get out of it. Would this not violate the fourth amendment rights of citizens?

I am not one to say that any right is absolute, it can be abrogated under certain circumstances that are spelled out in the Constitution (for example, the Fourth Amendment provides for warrants issued upon probable cause); however, it seems that the AHCA treats access to four particular chemicals to inhibit the fertility of a woman (or, barring that, prevent implementation of an embryo) to be in the national interest and should trump religious liberty. Does this seem warranted?

Daniel – I think your analogies don’t quite fit. The government certainly cannot write an unconstitutional law – compelling partisan political speech or forcing citizens to undergo warrantless searches – and then essentially charge people a fee to escape it. But that’s not what’s happening here.

Obamacare requires large employers to either 1) provide insurance or 2) pay a tax. Requiring them to provide insurance is definitely constitutional. It’s within Congress’ Commerce Clause powers and, by itself, it does not violate anyone’s religion. So offering the tax as a second option doesn’t function as a kind of constitutional extortion.

Bill, but, again you are missing the fact that it is *Christians* who are being forced to pay this tax simply because they hold to Christian convictions. Again, I ask you, what if *you* were forced to pay a tax simply because you held to secular convictions? Would you do it? Or would you too not recognize that it is a violation of the free exercise clause? Again, it what sense can the exercise of religion be said to be “free” if it forces people to pay a fine in order to be able to exercise their religion?

But Bill, isn’t *exactly* what the disagreement is about is if the “free exercise” clause–a Constitutionally-guaranteed right–applies in this case? You’re asserting that “this is not the case”, but that’s really the question.

Is “free exercise” limited to only what you do in the confines of the Synagogue/Church/Mosque/Temple/etc.? Or should it apply to how you decide to operate your business?

Keep in mind, we are talking about if the employer-subsidized access to four different contraceptives that can be considered abortificants is a greater inherent right than the right of a business owner to compensate his or her employees in a manner consistent with his or her faith. It has nothing to do with an employer dictating how an employee spends his or her own money, nor mandating a “pledge” or something like that as a condition of employment to NOT use abortificants. It is about subsidizing access to certain drugs the can cause abortion–and you are required to do so, either by offering health insurance that does so or pay a tax to do so.

To look at it from another way, does the “anti-establishment” clause means that there could be a “state philosophical society” that teaches one should follow Jesus Christ’s teachings, and that we are required to support with tax dollars, but because it doesn’t call itself a “religion” or “church” it’s just ducky?

1) Provide insurance that covers the four contraceptives.
2) Provide insurance that doesn’t cover the contraceptives, but pay massive fines that would bankrupt the company.
3) Provide no insurance and pay a modest tax roughly equivalent to the cost of providing insurance.

How can option 3 – paying a tax in lieu of health insurance – possibly violate Hobby Lobby’s religious freedom? Since option 3 is available to Hobby Lobby, they can’t argue that the federal government violating their First Amendment rights.

“Free exercise” means the right to not be taxed by the government for simply holding to our beliefs. Good grief, Bill, this is the same thing that the English government did to the people of England, and the very kind of thing our founders were trying to prevent by writing this amendment! Imprisoning or taxing people who were not part of the Church of England. So, if you do not hold that it is okay to be complicit in the murdering of children, then you will be unable to provide health insurance to your employees, and you will be forced to pay a tax.

As for what my argument is, even Justice Kennedy recognized it. Given this logic, why couldn’t the federal government force Christian organizations to pay for abortions or pay a tax? The lawyer for the Obama administration said that it wasn’t what they were saying, but Kennedy saw right through that argument when he said that it is the logical conclusion of what they were saying.

I think what is so sad for me in all of this is that these arguments are being made here in the United States. In our national anthem, we call ourselves the land of the free and the home of the brave, and yet, what I hear people saying is that, if they had their way, no Christian can run his business by Christian principles, and, in reality, no Christian corporation can exist without being taxed for being a Christian organization. If Hobby Lobby looses this case, we are no longer the land of the free and the home of the brave. We are the land of government slaves and the home of cowards.

Bill, you’re completely ignoring the “shoe on the other foot” scenario that Adam gave and refused to answer the question he posed on it. I’d like to think it was just a mistake, but purposely ignoring the that scenario and leads me to believe you know that the argument the other side would cause riots in the street.

First, a court probably wouldn’t take the business owner’s secular or irreligious claim of conscience as seriously as a religious claim, but let’s assume it would.

The business would sue claiming that the government was forcing it to violate its conscience by funding therapies it finds abhorrent. But it should lose in court for the same reason Hobby Lobby should lose – the law gives the company a way to avoid participating in the objectionable conduct.

I’m not sure whether there would be “riots in the streets.” Seems irrelevant to the legal question.

Again, Bill, you are missing the point. They are able to avoid it by being forced to pay a tax. In other words, here is what the government is saying: You can hold your beliefs, but you will be penalized for so doing, by being forced to pay a tax, and forced to not give your employees health care. Are you saying that you would be okay if people who believe that homosexuality should not be changed are forced to not give health care to their employees, and forced to be taxed for this belief? I just want to make sure I am understanding you, and all of the homosexual rights advocates who read this blog are understanding you. Yes, the way the homosexual rights crowd operates, I would not want to have to stand there and say that at a gay pride rally.

Just one question though. The next administration could come in and repeal the health care law, and make a new law requiring the taxation to now be given to people who do not believe in redemptive therapy for homosexuals. And the next group could come in and impose the tax on Muslims. How do you not have arbitrary law here whose ethics is based upon whatever the government wants at the given moment? They could, theoretically, impose a tax on anyone named Bill, and then where would you be left? What we have here is law that has no universal base or standard by which to judge anything. And, if that is the case, in what sense can it be called law? How is it “law,” when it has no universal foundation? How is it not just the whims of a few people, and not really law?

That is the real problem with secular theories of law. They can’t provide any universal base, and this kind of statism and authoritarianism is usually the result. You will be fine with this, until the government penalizes you for your beliefs through taxation and forcing you to refuse health care to your employees. Then you will cry fowl. You say you wouldn’t, but I guarantee you would. However, that is the problem with sociological arbitrary law. It doesn’t really mean much when it is not affecting you. However, when your political opponents are in power, and they start doing the same thing to you, then you will complain. That is the problem with idolatry. One’s idol [in this case, the government] seems good to follow and not question until that idol starts hurting and enslaving you. Then it is too late. We have made the government and its legal system into an idol, and this kind of slavery to its authority is the result.

Not really sure what your argument is, but feel free to check out any of my previous comments explaining that the federal government is not actually forcing any large employer to provide contraceptives to its employees.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The phrase “or prohibiting the free exercise thereof” is quite important here. Christianity is an ethical religion. Is the exercise of the religion “free” when you force people to pay a tax in order to exercise it? Again, what if the tables were turned, and you were not able to practice your secularism without being fined? How is that “free” in any sense? This was the whole point of the first amendment-to avoid the problems associated with the Church of England and the state church. The Church of England was a state church and required that people be a member of its church, and threatened fines and imprisonment if you did not comply. How are these legal sanctions demanding that Christians pay fines and forbidding them from providing health care any different than what the English and the Church of England were doing to its subjects?

We have a state religion right now. It is secular humanism. Because the “separation of church and state” has been arbitrarily defined as ideological, it has secularized the state, making secularism the religion of the state. Now, this religion is exacting fines if you don’t follow their mandates, in direct conflict with the free exercise clause. This is the very thing that the founders were trying to prevent, and it is sad to see that you think it has no relevance to the situation at hand, when it is directly parallel. Then again, I don’t think you have any universal basis for law, other than this kind of force, so I think it is perfectly consistent with your worldview. Still, the fact that you refuse to address whether or not you would not allow for the same thing in regards to homosexuality and secularism is very telling-very telling indeed.

I don’t think it matters. There’s enough there to be able to conflate Plan B as equivalent to an abortion. Remember, a short time ago ago the conversation was about a ban on abortions after 20 weeks.

The point isn’t so much that Plan B is or isn’t an abortion. It’s about a real issue of the freedom to operate a business according to one’s religious principles and a symbolic, more or less, victory against the cultural revolutionaries.

Can someone tell me why (including you Mr. Burk) I should rely/trust the point of view a Biblical Studies professor more so than say, Adam Liptak, Esq. (Yale Law ’88) of the NY Times? Disparagement, sarcasm, belittling, undermining expertise… not intended. Rationale in search of.

I’m a research fellow who teaches public administration and criminal justice. I attend a non-denominational evangelical church. Bethel (MN) and Westmont alum.

My question relates not to the should or should not of a religious exemption.

Rather, why should I believe, for example, that the Religious Freedom Restoration Act does not apply in this case when someone like Adam Liptak says it does? He’s more of an expert (at least on paper) than Burk.

[…] The Most Consequential Religious Liberty Case in a Generation Denny Burk with a pre-emptive strike against the distortions and misrepresentations you will encounter as the Hobby Lobby Case goes to the Supreme Court this week. And here’s a fine interview with Steve Green, the owner of Hobby Lobby. Loved this line: “If the ruling goes against Hobby Lobby, “I don’t know what we will do but I am sure what we will not do,” he said. He will say as the three men told the king, “even if God does not deliver us, we still cannot do this.” (Daniel 3:16-18). […]

[…] The Most Consequential Religious Liberty Case In A Generation One of the most important religious liberty cases in a generation will come before the Supreme Court on Tuesday. Hobby Lobby and Conestoga Wood Specialties will be making their final appeal for an exemption from Obamacare’s coercive “contraceptive” mandate. Obamacare requires employers to provide health coverage for all FDA-approved contraceptive devices. So what’s the problem? […]

[…] The Most Consequential Religious Liberty Case in a Generation – While you may never shop at Hobby Lobby, a case that involves them that comes before the Supreme Court tomorrow is of great importance. Denny Burk explains why we should be concerned. […]